Going Solo: When Appellate Judges Get to Decide on Their Own. Having to make every decision by committee might get tiring, but appellate judges do get an occasional taste of solo power.

• Author: Anna-Rose Mathieson, Ben Feuer
• Pages: 13-15

Appellate Practice

Winter 2021, Vol. 40 No. 1

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March 13, 2017

Going Solo: When Appellate Judges Get to

Decide on Their Own

Having to make every decision by committee might get

tiring, but appellate judges do get an occasional taste of solo

power.

By Anna-Rose Mathieson and Ben Feuer

Trial court judges get to make their own decisions. Not so appellate judges. Three-judge

panels sit at the intermediate appellate level for most federal and state courts, which

means at least two judges must agree for any decision to become precedent. Even more

crowd the bench at higher levels—seven on the high courts in California, Florida, and New

York; nine on the U.S. Supreme Court and the Texas high courts; eleven on most Ninth

Circuit en banc panels; and fifteen or more judges on Fifth Circuit en banc panels.

Having to make every decision by committee might get tiring, but appellate judges do get

an occasional taste of solo power. The decisions that can be made by a single judge vary

from court to court, but, as a general rule, the more ministerial and procedural the issue,

the more likely an individual judge will be authorized to decide it.

Decision Making at the Supreme Court Level

The broadest powers—at least in theory—are given to individual U.S. Supreme Court

justices. A justice acting alone can grant or deny a stay of a lower court order, issue a

temporary injunction, or order a prisoner released on bail. For example, Chief Justice

Roberts ordered a stay of a lower court order releasing a criminal defendant until the Court

could determine whether to grant certiorari. Maryland v. King, 133 S. Ct. 1, 2 (2012). And

Justice Sotomayor denied a company’s request for an injunction freeing it from the

contraception coverage requirement of the Affordable Care Act pending merits review by

the full Court. Hobby Lobby Stores, Inc. v. Sebelius, 133 S. Ct.641, 642 (2012).

Opinions written by Supreme Court justices acting alone are known as “in-chambers”

opinions and are generally followed as precedent of the Court—they are now included in

the formal reports with the phrase “Circuit Justice” after the author’s name. If a justice

acting alone grants an application, the other side may request the entire Court to vacate the

order, although the Court handbook wryly notes that “[a]s a practical matter, these